Food Fears: Health and Safety at the WTO

Within the next twelve to twenty-four months, the World Trade Organization (WTO) may have to rule on a dispute between the United States and the European Communities (EC) regarding genetically modified organisms (GMO). This Article explains why the organization’s current jurisprudence risks making this case and others like it an unnecessarily explosive and damaging one for the trading system. Existing WTO cases interpreting health and safety rules instruct panels and the Appellate Body to determine if there is a “rational relationship” between a challenged measure and the “risk assessment” that must be conducted before a measure is adopted. In making a ruling, therefore, panelists must evaluate scientific evidence, attempt to gage the defendant’s willingness to tolerate risk, and assess the relationship between risk and the challenged measure. This Article argues that substantive review of this kind is unwise and unnecessarily threatens the stability of the international trading system. The WTO is poorly placed to evaluate either science or the risk preferences of states. In addition, when the WTO finds a violation of WTO obligations, the relatively weak enforcement mechanisms of the organization will often be insufficient to overcome the political salience of health and safety measures or the sovereignty implications of an * Professor of Law, University of California at Berkeley, Boalt Hall School of Law. I owe thanks to Jeff Atik, Stephen Choi, Kal Raustiala and Joel Trachtman for helpful comments. Special thanks to Daniel Frederick and Nicholas James. Rachel Anderson and Catherine Ji provided excellent research assistance.